Legal and Regulatory

The Value of Photographic Evidence in Construction Litigation

Photos provide key evidence in a construction dispute. Details and visual context make a story compelling and evidence and corroboration make a story persuasive.
By Marie Mueller
March 16, 2021
Topics
Legal and Regulatory

If a picture is worth a thousand words, can it be worth a thousand dollars? Ten thousand? Maybe, if it provides key evidence in a construction dispute. Litigating a construction case involves each side telling their story. Details and visual context make a story compelling. Evidence and corroboration make a story persuasive. Photographs can help on both of these fronts.

The Value of Photographic Evidence in Construction Litigation

Consider the following examples:

  • A dispute relates to the timeliness of particular work. An employee has a memory of a load of materials arriving to the site later than it should have, but the records are incomplete or ambiguous about when it actually occurred. If the employee also took a photo of the materials, on the day they arrived, they could match up the date of the photo to their memory and build a clear timeline.
  • A dispute relates to the presence or absence of obstructions in drilled shafts. There are no available photographs or videos of the work due to site restrictions. Presentation of this type of case may be severely limited by not being able to show photos depicting the size, shape and type of material removed from the shafts, and by the lack of video depicting the work.
  • A dispute relates to damage done during the course of construction, such as broken windows or holes in the wall. By the time litigation rolls around, the job is done and everything has been repaired. Visuals can help a factfinder to understand what actually occurred. A carefully documented photo inventory, with contemporaneous notes, will help illustrate the damage that occurred. For example, a close up could be important to show detail, but will likely also lose track of location identifiers. Make sure that the photos taken can be identified and explained. A video walk-through could be similarly effective.
  • A workplace injury occurs on site. There is a dispute over whether adequate signage was in place to warn against a hole in the floor. Photographs immediately afterwards could confirm the presence of appropriate signage. Employee testimony about the regular and consistent practice of placing appropriate warning signs could also be bolstered by photographs of the site throughout the job showing proper signage.
  • Five years after a project is complete, a customer complains that an incorrect sealant was utilized, causing damage. The contractor no longer has the purchase receipts to verify the product purchased. But, zooming in on photographs from the job site could confirm that the correct product was applied, avoiding potential litigation.
    In each of these examples, the presence or absence of photographs will impact each side’s presentation.

Advice for Photographic Documentation During the Course of a Project

How can a contractor build a consistent practice among employees of documenting ongoing work? Whether documenting the job is a daily or weekly occurrence, or at particular benchmarks or significant events will depend in large part on the size and scope of the project, and on specific limitations of the site.

In a large project requiring submission of detailed daily reports, the contractor should utilize an electronic format that will include photographs each day of ongoing work and key events. The person compiling the daily report should include detailed captions regarding the photographs. Having photographs matched up to a date and description could prove to be invaluable if the contractor needs to recreate the events of a project years later in a courtroom.

Certain worksites, such as in restricted areas of government or military installations, have strict limits on photography. Photography may not be allowed at all, or the owner may own any photographs that the contractor takes. Document with photographs to the fullest extent permitted, but this situation renders contemporaneous written notes, and potentially drawings, even more crucial.

On smaller projects with less robust daily documentation, the contractor’s crew should take pictures of the full site at least once a week (once a day is better and is made easier by the ubiquity of smartphones), or at significant milestones in the job. One person should be responsible for this on a scheduled basis, but the contractor can and should encourage everyone to document key events or issues that arise. A smartphone camera will capture date/time data. However, given potential turnover in employees and the lag time between the work and a potential dispute, the contractor should ask for these job photos to be emailed in on a regular basis with descriptions. This provides another opportunity to confirm both the timing and content of a photo, should that information be needed later.

Use people, objects or measuring tools to provide scale. It can be difficult to see if a crack in a floor or a wall is two or five feet without a frame of reference. Scale can be highly effective and persuasive. For example, in a case involving excavation of boulders, a photograph of a boulder or pile of boulders dwarfing a person next to it is more likely to stick in the memory of a factfinder than just a measurement.

Incorporating these steps will ensure that the contractor has adequate photographic documentation of a project. And, utilizing a consistent process will give the contractor enough information to identify and authenticate photographs, and will make these photographs “business records” admissible in court.

It is possible that more thorough documentation may result in some photographs that do not help the contractor’s case in litigation and may be damaging. This is a risk with any type of documentation. But, on balance, it is better to have more information available when trying to understand what went wrong with a project.

Keep in mind that once the potential for litigation is known, destroying any project records is not permitted. As a general matter, it is advisable to retain records, including photographs, because it is impossible to predict what issues may arise a few years out from a project and what information could be crucial.

by Marie Mueller
Marie Mueller represents clients in all phases of litigation, including arbitration, trial, dispositive motion practice, mediation and before the medical malpractice screening panel. Marie represents clients throughout New England, including many in the construction industry. She has been recognized by Best Lawyers for her construction litigation practice.

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